Judicial Decision Upholding the Constitutionality of the Congressional Review Act

A federal judge last week upheld the constitutionality of the Congressional Review Act (CRA), a law that Congress has used recently to overturn more than a dozen federal regulations from the Obama Administration. Under the CRA, Congress, by a majority vote, can disapprove a federal regulation if it does so within sixty legislative days after the regulation was adopted. Once Congress disapproves a regulation, it cannot be readopted in substantially similar form.

Before the Trump administration took office, the CRA had been used only once before to overturn a federal regulation. The law was used so sparingly because of its practical limitations. In the first place, Congress has never been in the position to use the law to overturn a regulation issued by a sitting president, because the president would veto the action, and there has not been a Senate for many years in which the necessary two-thirds majority exists to override the veto.

Thus, the only time the CRA can be used is when a new administration takes office which is of a different party than the previous administration and the new administration has a majority in Congress. Moreover, even in this scenario, the ability to use the CRA is limited given the requirement that action be taken within sixty legislative days of the regulation’s adoption. Congress must not only act fairly quickly after the old administration has left office, it can only reach regulations adopted relatively late in the old administration’s term of office.

This constellation of necessary conditions for the exercise of the CRA existed in the first year of the Trump administration, as both houses were majority Republican and President Obama’s administration adopted numerous regulations in its final year in office. These regulations included a Fish and Wildlife Service rule barring certain hunting and trapping practices in national wildlife refuges in Alaska. The Center for Biological Diversity (CBD) challenged Congress’ disapproval of this rule, asserting that the CRA violates the constitutional separation of powers doctrine.

Judge Sharon Gleason of the U.S. District Court for the District of Alaska, however, rejected the CBD’s suit. The CBD’s main attack was based on the fact that, under the CRA, Congress can disapprove a regulation by a joint resolution of both houses that does not then go to the president for signature, even though the president can veto the resolution. The CBD argued that this lack of “presentment” to the president of individual CRA resolutions violates the Article I requirement that all laws adopted by Congress be signed by the president. Judge Gleason, however, concluded that the “presentment” requirement is satisfied by the fact that the CRA itself was signed by the president.

The CBD is sure to appeal the regulation to the United States Court of Appeals for the Ninth Circuit, a court known for its sympathy to environmental claims.

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